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Supreme Court Hears Arguments on Legality of Military Commissions

By Kathleen T. RhemAmerican Forces Press Service

WASHINGTON, March 28, 2006  The Supreme Court today heard oral arguments in a case that could make or break the government's military commissions process for terror war detainees held at Guantanamo Bay, Cuba.

At issue in the case of Hamdan v. Rumsfeld is the legality of the military commissions set up after the Sept. 11, 2001, terrorist attacks. The court also is deciding a question on its own jurisdiction in the case.

The government, represented here by Solicitor General Paul D. Clement, filed a brief with the court that argued the case on six separate legal issues. Government attorneys contend the president has constitutional and congressional authority to establish such war crimes courts outside the U.S. judiciary system and that al Qaeda detainees don't fall under the tenets of the Geneva Conventions.

"For centuries, this Nation has invoked military commissions to try and punish captured enemy combatants for offenses against the law of war," Clement wrote in introducing his brief.

Attorneys for Salim Ahmed Hamdan, a Yemeni citizen captured in Afghanistan and accused of being a body guard for terrorist leader Osama bin Laden, argue the process was never expressly authorized by Congress and doesn't meet standards of constitutional checks and balances.

"The president seeks not merely to detain temporarily but to dispense life imprisonment and death through a judicial system of his own design. Anyone, anytime, may be swept into this system and forced to endure years of waiting before their cases are even heard," Georgetown University law professor Neil Katyal, the defense's counsel of record in this case, wrote in a brief to the Supreme Court.

Hamdan's case has taken a circuitous route to the Supreme Court. He first appeared in court in a military commission pre-trial hearing at Guantanamo Bay in August 2004. That hearing ended with the presiding officer granting a continuance for the defense while senior officials in the commissions process ruled on a request by Hamdan's military attorney, Navy Lt. Cmdr. Charles Swift, to have several panel members removed for cause.

Before that matter could be settled, Judge James Robertson, of the U.S. District Court in Washington, ruled in November 2004 that the government had overstepped its bounds and violated the Geneva Conventions in trying Hamdan by military commission. The judge ruled the government should try Hamdan in a military court-martial, as it would a prisoner of war.

The government won on appeal when the U.S. Court of Appeals for the D.C. Circuit ruled in July 2005 that the military commission is a competent tribunal to try war crimes cases. Supreme Court Chief Justice John Roberts was a member of that panel before his appointment to the Supreme Court and has recused himself from the current case because of that conflict of interest.

The Detainee Treatment Act, a new law passed by Congress and signed by President Bush in December, further complicates the issue before the court today. The law strips the U.S. courts of jurisdiction in cases brought by detainees at Guantanamo Bay.

The Detainee Treatment Act allows for detainees to appeal convictions by military commissions to the D.C. Court of Appeals, but not to bring cases forward questioning the legality of the process or contesting their detention.

Soon after the law's enactment, the government petitioned the court to drop the Hamdan case on the premise that it no longer has jurisdiction in the matter.

The court announced Feb. 21 they would not rule on the matter but would instead hear arguments on the issue today with the original case. It also added an extra 30 minutes to the original hour allotted to discuss the additional question of jurisdiction.

The Supreme Court will announce its decisions in the case before it adjourns for the summer recess, usually sometime in late June.